In Other Countries
On July 5, 1993, marital rape became a
crime in all 50 states, under at least one section of the sexual offense codes.
In 20 states, the District of Columbia, and on federal lands there are no
exemptions from rape prosecution granted to husbands. However, in 30 states,
there are still some exemptions given to husbands from rape prosecution. In
most of these 30 states, a husband is exempt when he does not have to use force
because his wife is most vulnerable (e.g., she is mentally or physically
impaired, unconscious, asleep, etc.) and is unable to consent. Women who are
raped by their husbands are likely to be raped many timesóoften 20 or more
times. They experience not only vaginal rape, but also oral and anal rape.
Researchers generally categorize marital rape into three types; force-only
rape, battering rape and sadistic.9
In a theory that was articulated by Mathew
Hale, who was the then Chief Justice of England in 17th century said
“the husband cannot be guilty of rape committed by himself upon his lawful wife
for by their mutual matrimonial consent and contract, the wife hath given up
herself in this kind unto the husband which she cannot retract.” In late 20th
century numerous states adopted laws criminalizing marital rape, and on 10,
December, 1948 Universal Declaration of Human Rights was signed and India was a
party to it. Article 16 of the UDHR should also be mentioned:
“Article 16 (1) Men and women of full age,
without any limitation due to race, nationality or religion, have the right to
marry and to found a family. They are entitled to equal rights as to marriage, during
marriage and at its dissolution.
(2) Marriage shall be entered into only
with the free and full consent of the intending spouses. (3) The family is the
natural and fundamental group unit of society and is entitled to protection by
society and the State.”
Those states that criminalized marital rape
avenue three steps:
states simply abolished the marital rape exemption by striking it from the
books. (To illustrate: if the code defined rape as
“sexual intercourse with a woman, not your wife, by force and against her
will,” the legislature could strike the phrase “not your wife,” thereby
abolishing the marital rape exemption). Under this approach, which most states
rape is treated the same as other forms of rape.
Some states explicitly eliminated marriage
as a defence to the charge of rape.
states retained their marital rape exemption in the code, and enacted an additional
provision creating a separate offense of marital rape.”10
In 1995, United Nations
Women’s Conference in Beijing, China representative consistently passed a
resolution stating that ‘a wife has a right to refuse sexual demands by her
husband’. Even international law recognizes rape as “sexual
penetration, not just penal penetration, but also threatening, forceful, coercive
use of force against the victim, or the penetration by any object, however
slight” in which Indian legislature lags behind. The “United Nations Convention on the Elimination of All Forms of
Discrimination against Women” (CEDAW) , has viewed that this sort of
discrimination against women violates the principles of equality of rights and
respect for human dignity. Further, the Commission on Human Rights, at its
fifty-first session, in its Resolution entitled “The elimination of violence
against women” recommended that marital rape should be criminalized. In
Declaration of the Elimination of Violence against Women, it is given under
Article 2 that is violence against women includes marital rape in its
Current Legal Position
The colonial era of section 375 of Indian
Penal Code saves mean daring husbands from punishment because it does not
recognise rape within marriage despite the section being amended in 2013. The
Government baulked when the topic rose of amending existing rape laws to bring
married women under the purview of section 375 and 376(A) of IPC. When it was
suggested by the Justice Verma Committee then the lawmakers argued that
institution of marriage will be destroyed and it will also damage the
institution of family. They always ignored the fact that a rape in marriage is
already damaging the institution itself.
In the year 1996 The Supreme Court of
India in Bodhisattwa Gautam v. Subhra Chakraborty said that “rape is
a crime against basic human rights and a violation of the victim’s most
cherished of fundamental rights, namely, the right to life enshrined in Article
21 of the Constitution. When our constitution guaranteed the “right to life and
personal liberty” provided under Article 21 of The Constitution of India, 1950
which implied that every individual has the right to live his life with dignity,
and it is interpreted by the courts time and again that right to life means
right to life with human dignity despite this it is ignored when it comes to a
wife who is raped by her husband. Doesn’t she have a “right to life”? Does a
girl become an asset after getting married? There is a great urge to make
changes in the present laws mainly in India Penal Code.
Criminal Law amendment act, 2013 could not
be applied to married women and this is the sole reason why additional session
judge Virender Bhatt of Delhi Court acquitted the husband who was accused of
raping his wife because it is a failure as the protection does extent to the
The Domestic violence act 2005 has proven a
disappointment because it has only bestowed to what the provision of cruelty
that is already mentioned in criminal remedies and continues to disregard the
matter of marital rape. Section 3 of the Domestic violent Act 2005 amongst
other things in the in the definition of domestic violence, has included any
act causing harm, injury, anything endangering health, life, etc; be it mental,
physical and sexual. It gives green light in a domestic relationship or in a
live in relationship for the sole reason if it is considered as life
threatening or grievously hurtful. In India marital rape is not an offence but
the issue rises of women’s individual status and dignity irrespective of
There are twisting laws based on religious
practises like Hindu Marriage act, 1955 which says “a wife is duty bound to
have sex with her husband.” According to traditional Hindu believes denial of
sexual intercourse by wife to her husband is considered as going against the
duty of an ideal wife.
Changes to be Made
Firstly, changes should be made in
section375 of India Penal Code which states that:
Section 375 in the Indian Penal Code
Rape.—A man is said to commit “rape” who, except in the case hereinafter
excepted, has sexual intercourse with a woman under circumstances falling under
any of the six following descriptions:—
(First) — Against her will.
(Secondly) —Without her consent.
(Thirdly) — With her consent, when her consent
has been obtained by putting her or any person in whom she is interested in
fear of death or of hurt.
(Fourthly) —With her consent, when the man knows
that he is not her husband, and that her consent is given because she believes
that he is another man to whom she is or believes herself to be lawfully
(Fifthly) — With her consent, when, at the time
of giving such consent, by reason of unsoundness of mind or intoxication or the
administration by him personally or through another of any stupefying or
unwholesome substance, she is unable to understand the nature and consequences
of that to which she gives consent.
(Sixthly) — With or without her consent, when
she is under sixteen years of age. Explanation.—Penetration is sufficient to
constitute the sexual intercourse necessary to the offence of rape.
intercourse by a man with his own wife, the wife not being under fifteen years
of age, is not rape.
CHANGE: – Exception should be deleted as it violates the
fundamental right of wife.
Section 376A: The Indian Penal Code
376A. Whoever, commits
an offence punishable under sub-section (l) or sub¬section (2) of section 376
and in the course of such commission inflicts an injury which causes the death
of the woman or causes the woman to be in a persistent vegetative state, shall
be punished with rigorous imprisonment for a term which shall not be less than
twenty years, but which may extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person’s natural life, or with death.
whoever being a relative, guardian, teacher or a person in a position of trust
or authority towards the women, commits rape on such women and,
(h) Commits rape on a
women knowing her to be pregnant.
(i) commits rape on a
women when she is under sixteen year of
(k) Being in a
position of control over dominance over a woman, commits rape to such a woman
(n) Commits repeatedly
rape on the same woman
shall be punished with
rigorous imprisonment for a term which shall not be less than twenty years, but
which may extend to imprisonment for life, which shall mean imprisonment for
the remainder of that person’s natural life, and shall also be liable to fine.
If we consider age of
a woman as a prominent factor in rape then why it different for married women
and girl that exception of 375 of IPC says if a girl is under fifteen year and Section
376, says rigorous punishment for raping a girl under sixteen. The question
arises here, if a girl is married and above fifteen she has no where to get
justice whereas, legal age for marriage is 18.
Firstly, he is a
relative of a woman, and in a position of trust.
Secondly, in some
cases a wife is repeatedly raped by her husband and also when she is pregnant.
Thirdly, husband is
always in a position of dominance because of patriarchal society.
Considering all the
above stated criteria, if they are fulfilled by husband then why he is not
liable under India. This also violates the fundamental right of women under
Article 14 which states that State shall not deny to any person equality before
law or the equal protection of laws. Does a women being wife does not entitled
to get equality before law?
Constitution which is
Law of the land and the ultimate power lies with the citizen of the country
because it is a document which is given by the people and not the bodies formed
by this constitution and in Article 51A (e) states it is the fundamental duty
of every citizen to denounce practices derogatory to the dignity of the women.”
After marriage women comes under the jurisdiction of a single man who would
govern her life and ceases to be under the jurisdiction of Indian law because
Indian society considers sexual intercourse considering sex as obligation being
oblivious about the evil consequences because of this detrimental notion. In more than 80 countries including even
those with whom share our border with like Nepal has removed the provision of
Marital Rape but Indian legislature has made married women’s life miserable
post 2013 amendments as it has soundlessly acknowledged unqualified license to
treat the wife as “chattel” and
escapade her in any vicious manner as her husband wishes to do so.
1 Richard J. Gelles, ‘Power, Sex and Violence: The Case of Marital
Rape’ Oct., 1977, 339
2 Indian Penal Code
1860 s 376(A)
3 Irene Hanson Frieze, ‘Investigating the Causes and Consequences of
Marital Rape’ 1983, 532
4 M. Faulk, ‘Sexual Factors in Marital Violence’ Oct. 1977, 30-38
5 Supra ( n 3)
6 Report of the Committee on Amendments to Criminal Law, Justice J.S
Verma, January 23, 2013
7 172, Law
Commission Report, March 25, 2000
8Sakshi v. Union of India and Others 2004 (5) SCC 518
9Raquel Kennedy Bergen, ‘Marital Rape: New Research and Directions’
10 Supra (n 8)